Christian Menefee
Harris County is battling Texas Attorney General Ken Paxton’s office over its ability to withhold election records that have been requested under the state’s public information law.
In the case, filed last December, the county argues it should be able to reject requests for three types of information: voting records that are prohibited from release by state law for 22 months after an election, documents related to pending litigation, and working papers involved in ongoing audits.
The Texas Election Code, in keeping with the Civil Rights Act of 1960, bars officials from releasing anonymized completed ballots for 22 months after an election.
There has been a longstanding consensus that those election records are confidential during that period, according to Harris County Attorney Christian Menefee.
“And then, out of thin air, our current attorney general decided that those records were no longer confidential and had to be produced to the public for inspection immediately following the election,” Menefee said. “Again, this was a complete 180 from not only the law, but also previous opinions issued by previous attorneys general.”
Menefee said Paxton’s decision was driven by politics, not the law.
“It’s just a bad faith reading of the law to appease a certain part of his base,” Menefee said.
The county is asking a Travis County court to rule Paxton’s office wrongly concluded the county could not withhold those records, but others side with the attorney general’s interpretation. Williamson County also is suing the attorney general on the election ballots issue.
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Chad Dunn, a longtime election lawyer based in Austin, said Harris County is doing the right thing by seeking a court ruling.
“There are good arguments on both sides on whether or not election records should be available within that period. And what I have found frustrating is that the state takes each side of that position depending on what the political stakes are at issue,” Dunn said. “So, getting a final ruling on it from the courts, to me, is the critical piece.”
Harris County also is fighting the attorney general’s determination that it must hand over records related to pending litigation.
The Texas Public Information Act includes that exemption to prevent the public from misinterpreting information before a case has had its day in court, which is particularly important when the litigation involves election misinformation, Menefee said.
“This is the quintessential example of people seeking to litigate something in the public sphere, and that’s why the Legislature passed the law allowing for documents to be withheld subject to the litigation exception,” Menefee said.
Menefee said the exception is standard practice at every level of government.
“In fact, just last week, the AG’s office notified us that they were asserting the litigation exception on something relevant to something going on in Harris County,” Menefee said.
See here for some background on the lawsuit, for which there are multiple counties as plaintiffs. The story also obliquely refers to the furniture guy lawsuit over election records, which is relevant to this litigation. I don’t have a whole lot more information here. As a matter of course, I’ll side with Harris County against Ken Paxton, but on a broader level I think Chris Dunn has this right. What we want is clear rules that are consistently applied, and we don’t want the state picking on its political enemies. We’ll see what we get, which I’m sure will eventually wind up before the Supreme Court.
One more thing:
The county has turned over some election-related documents to lawyers involved in the 22 election contest lawsuits filed by Republican candidates, Menefee said.
“To the extent that those cases end up going to trial, then all these issues are going to be litigated in public,” Menefee said.
Some of those lawsuits could go to trial by mid-June at the earliest.
Good to know.